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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Trump Lease of Old Post Office - A pending breach?

    For anyone still interested in this topic, in March, the GSA Contracting Officer concluded that the hotel lease is valid. As one would expect, there is still disagreement amongst contracting professionals regarding that determination. The article linked below contains embedded links to the GSA Contracting Officer's letter, NPR's previous coverage, and an interview with Prof. Schooner regarding his thoughts on the lease. http://www.npr.org/sections/thetwo-way/2017/03/23/521283505/gsa-says-trump-d-c-hotel-lease-is-valid-despite-ban-on-elected-officials
  2. Performance-based payments law vs. reg

    Vern and ShawnT, I don't think this issue is that clear - conceivably, valid arguments could be made on either side based on which definitions are chosen. For instance, let's consider that the language in 10 USC 2307(b) says nothing about performance based payment amounts - it uses the term "performance based payments," which based on the following definition of payment, could mean the issuance of the PBP: That definition along with the alternative definitions of "conditioned upon" or "condition" would be consistent with an interpretation that the PBP criteria governing when a payment shall be issued cannot be tied to costs incurred, but the amount expended can still be limited by costs incurred to avoid unintended advance payments. Vern makes an interesting assumption that industry lobbied for the change which may very well be true; however, could it also be possible that there was a push within the Government to be more restrictive and/or explicit that PBP criteria cannot be tied to costs incurred based on misuse by agencies? Despite the differing interpretations, I'm inclined to believe my original position for now (despite a much more experienced/educated individual disagreeing with me) because payment amounts receives its own paragraph at 10 USC 2307( c ). That would be the natural place for any language consistent with ShawnT's interpretation of the law and the language currently there does not prohibit the DoD from being more restrictive by limiting the PBP amounts to no more than the costs incurred.
  3. Performance-based payments law vs. reg

    ShawnT, I think you cut your definition search a word short - look up the definition of the term "conditioned upon" and think about how that term is distinct from a limitation. Then I'm confident you'll understand the difference/nuance and Vern's logic. Edit: Even alternative definitions of "conditioned" might be worth considering, such as American Heritage Dictionary's (https://ahdictionary.com/word/search.html?q=condition) Conditioned: To make dependent on a condition or conditions: Use of the cabin is conditioned on your keeping it clean. The PBPs are dependent on performance outcomes, but limited by actual costs incurred.
  4. Wage Determinations under the SCA

    You'd be surprised to hear that there are plenty of cases regarding underpayment and back wages...https://www.dol.gov/opa/media/press/whd/ For worker specific info, see the following link: https://www.dol.gov/whd/workers.htm There is even a handy link on "How to File a Complaint."
  5. PTA above ceiling price — how big a deal, really?

    In regards to the following: Now I think we have different conceptions of the PTA - since when does the PTA define the point where the seller is in a "loss position?" The PTA is merely the point where the share ratio converts from X/Y to 0/100 - a seller could still be in a profitable position at a PTA. For example, let's refer back to the authoritative source you cited. In that example (Figure 3), at the PTA the contractor would still receive 5 profit...how is that a "loss position?" Overall, I'm not sure how to answer your central question any better than Vern did. A PTA is not a term of the contract and it's importance is only as significant as the parties choose to make it when negotiating the geometry of the FPI contract.
  6. PTA above ceiling price — how big a deal, really?

    Maybe Bill has is axes or ratios mixed up...as the source he cited mentions, convention is to list the Government share in the numerator and the contractor share in the denominator while graphing profit along the y-axis and cost along the x-axis. If convention holds, a 50/50 share line is not "flatter" than an 80/20 share line.
  7. Quotes vs. Proposals

    Be careful receiving advise without a source or citation. Read FAR 13.106 titled "Soliciting Competition, Evaluation of Quotations or Offers, Award and Documentation." Notice the use of "quotations or offers" in the title and throughout that section. Also see FAR 13.106-2(b)(1) which states: Now refer to FAR 2.101 for the definition of "offer" which states: So to answer your question directly, yes you can request a "proposal" under FAR Part 13 procedures...but ask yourself, considering the definitions and distinctions between quotations and proposals, are you asking for a proposal for the right reasons? As for your evaluation approach, it sounds like you may be preparing to conduct an "essay writing contest" so I'll refer you to the following threads and posts by Vern Edwards which hopefully help you reconsider and/or inform your approach. Remember, in fashioning criteria for evaluation of offerors, focus on those factors that are discriminators rather than merely following a template and doing whatever was done the last time the services were contracted for.
  8. Ratification Authority

    C Culham, I don't know what FAR you're reading - paragraph ( c ) is clearly applicable to ONLY paragraph (b)(2) and paragraph (b)(5) doesn't even use the word "ratify" or "ratification" it uses the terms "claims" and "processed." I think Vern provided as good an explanation as possible and I attempted to show you through a different lens, though it seems you're stuck in your own beliefs (which if you take the time to think carefully, contradict themselves..."each sentence stands on its own"). So be it.
  9. Ratification Authority

    C Culham, The ratification limitations you cite throughout your previous posts and scenarios are only applicable to FAR 1.602-3(b)(2), not FAR 1.602-3(b)(5). See below: So why would you conduct those limitation tests when there is an unauthorized commitment that falls under FAR 1.602-3(b)(5) when the FAR makes it clear they are only applicable to FAR 1.602-3(b)(2)?
  10. Ratification Authority

    Not to be a nitpick, but for the benefit of those reading these forums I think you each forgot a "not" in the sections quoted above (I added the word in bold and underlined text where I thought it was accidently omitted).
  11. C Culham, The OPs question used the term "proposals." Since there is a distinction with a difference between "bids" and "proposals" do you still find your hyperlinked decision pertinent to the discussion here? In regards to the distinction between "bids" and "proposals" see the definition of "offer" under FAR 2.101:
  12. Shall7, Your assumption that contractors cannot (or should not, I'm not sure which) deliver educational value runs counter to the basic purpose of the federal procurement system as a whole...why is it not okay to use contractors for education/training purposes, but it is okay to use contractors for other services/requirements? Shouldn't the Government just do everything itself rather than "throw money at the problem(s)?" Where is the bright line? I'll just add the following: I've been through the DAU courses, the Naval Postgraduate School's MBA program, as well as years of agency designed/delivered monthly training and the best contracting course I've taken was designed and taught by a contractor...so I don't share your concern in the slightest. The Government does not have a monopoly on contracting/acquisition information - the best publications, in my opinion, aren't even written by Government/DAU officials. Should Government acquisition professionals not utilize those works and instead be tied to only DAU resources?
  13. Meaningful debriefing

    Ultimately, it sounds like you were trying to engage in an exchange of hypotheticals with the CO regarding the bright line for what is technically acceptable/unacceptable. If I were in that CO's shoes, I wouldn't do it either, primarily because with an LPTA acquisition the minimum technical requirements should be clear in the solicitation. I might also add that you should be careful what you wish for - if you did receive the debriefing answers you sought, to my knowledge, those answers are not binding for subsequent procurements. Therefore, adhering to information obtained during the debriefing instead of Sections L & M could impede your ability to secure future contracts. As for your current Q&As, I hesitate to comment because you've provided no information regarding the content/quality of the solicitation or the content/quality of your question; however, I will say this: don't expect the Government to tell you how to propose. Review the Evaluation Criteria in Section M and, if they aren't clear, ask specific, clarifying questions in response to the solicitation. If you're asking "what's the minimum technically acceptable..." I'm not surprised you're being referred back to the criteria in the solicitation which, in an LPTA procurement, should specify just that.
  14. CPSR driven by FAR 52-244-2?

    Though you may not have received the answer you anticipated or wanted, I think the second half of your question was answered ("what is the basis for it?")...you might want to consider that, of those individuals who frequent these forums, many do not post/participate so you may not ever get an anecdotal response from a similarly situated person/company here.
  15. Government Point of Entry

    There are exceptions to posting the solicitation at FBO.gov, see FAR 5.102(a)(5): In such a case, FAR 5.207( c )(17) applies, which states:
  16. Small Business Set-Aside

    What would be the substantive differences in regards to determining a fair market price that concern you? I don't see many differences between FAR 15.404-1(b)(2) and FAR 13.106-3(a)...
  17. Small Business Set-Aside

    Vern's right about terminology, my mistake, though the fair market price is determined consistent with my previous reference. See FAR 19.202-6 "Determination of Fair Market Price":
  18. Small Business Set-Aside

    GABE, Is this merely a hypothetical? I only ask because for small business set-asides (except those which allow for sole source awards) there is a "Rule of Two" requirement to help ensure there is competition which should drive fair and reasonable pricing (though understandably not always). That is also why there are multiple techniques one can use to evaluate whether or not a price is fair and reasonable. In your case if a determination cannot be based on prior purchases for similar products, have any of the other techniques listed at FAR 15.404-1(b)(2) been considered? If, however, the proper amount of price analysis has been performed and the price is not fair and reasonable, napolik's references are on the mark and I'd focus your attention/efforts there.
  19. Commercial vs non-commercial

    Sure, no disagreement if that was the intent behind your proposal as paragraph (2) is a more specific standard than just a "plan to offer it for sale."
  20. Commercial vs non-commercial

    Vern, Appreciate the correction, I shouldn't use the word "claim" since it means something quite specific in the context of contracting (it's a bad habit left over from my debate years where we discussed argument structure in terms of "claim, warrant, impact"). That's an interesting solution, let me give some more thought to it, though I currently don't think the "plan to offer it for sale" portion would meet any of the commercial item definition's criteria (the other two would). I went back and searched the Federal Register for the origins of the DFARS requirement for commercial item determinations on acquisitions over $1M and found the following (https://www.federalregister.gov/documents/2008/01/24/E8-1121/defense-federal-acquisition-regulation-supplement-commercial-item-determinations-dfars-case):
  21. Commercial vs non-commercial

    I would agree, in part, that invoices (or additional information) should not be requested for items that could simply be verified via a Google search of the company name and product description, but then again, there are cases where a "commercial item" claim is made and the company does not readily advertise the item (i.e. a Google search of the company name and product description will not return adequate results). In those cases, I believe a company should provide just enough information (no more, no less) to substantiate their claim that the item meets the criteria for "commercial item" in the FAR. I don't believe that is an unreasonable request.
  22. Commercial vs non-commercial

    Where is the criterion for "if it seems like something for sale in the commercial marketplace" in the FAR definition for commercial item? The criteria I read in the FAR are all factually based. I don't think that a CO should use the need to determine whether or not an item is commercial as a façade to request other than cost or pricing data (shame on those COs who do)...but a request for a non-redacted invoice to substantiate that the customer is either the general public or a non-governmental entity using the item in question for other than governmental purposes isn't unreasonable or an especially high hurdle to clear.
  23. Commercial vs non-commercial

    Well that doesn't answer Don's question and it certainly ignores the situation at hand, namely the prime does not make the commercial item determination, the Contracting Officer does. So if you're satisfied with the prohibitions in place for Government employees who handle confidential information (which applies to COs), it certainly begs Don's question: "What's the harm in giving the COs the pricing information they want?"
  24. Commercial vs non-commercial

    Are you familiar with 18 USC 1905 regarding disclosure of confidential information? https://www.law.cornell.edu/uscode/text/18/1905 The Government is asking for the customer information to make sure they are either the general public or a non-Governmental entity and the end use to make sure that the purpose is "for other than governmental" - those two criteria are straight from the FAR definition of commercial item...without that information how else would you expect someone to make an adequate determination that is grounded in facts? I'd love to hear an alternative, but unfortunately it seems you're asking the agency to hit the "trust me" button...
  25. Commercial vs non-commercial

    An item or service either should or should not meet the definition of commercial item (with the exception that the item in question has never been sold before and a company is making the initial decision as to whether or not to offer the item solely to the Government or to the public). I understand that there can be disagreement over whether or not an item is commercial and that there have been reversals of commercial item determinations, but I think that is a separate issue and conversation from what seems to be the position that companies have the luxury/ability to merely say a product is commercial or non-commercial when offering it for sale (a company can certainly make the claim, but I would expect it to be supported based on evidence relating to the definition of commercial item under FAR 2.101): Additionally, while PepeTheFrog is right that the contracting officer ultimately makes the commercial item determination, a company can still ultimately choose whether or not to do business with the Government. Basically, if the concern is that an agency is improperly making a determination that an item is non-commercial just to apply terms and conditions that would otherwise not be applicable, the easiest way one can avoid those burdens is to refuse to contract with that agency. There may be other avenues a company can explore to adjudicate the issue, but I only have thoughts on that issue so I'll leave that discussion to any of the industry professionals whom frequent these forums to discuss how they might address the situation. FAR Part 15 is not unique to non-commercial items...commercial items can also be procured under FAR Part 15 procedures (when combined with FAR Part 12). Finally, there are a myriad of reasons why the Government and the prime may disagree on whether or not an item is commercial (by the way, it can go both ways i.e. a prime may argue that an item is non-commercial while the Government determines the item is commercial) - my only advice is to provide the proper support and a clear justification/argument based on the FAR definition and hopefully both parties will arrive at the same conclusion.
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